Case 

In re:  Multi-Fund of Columbus, Inc. (Mar. 29, 2011), Franklin Cty. C. P. No. 09CVF-12-18865

Holding

A motion for relief from judgment under Rule 60(B) is not permissible in an administrative appeal brought pursuant to R. C. 119.12.

Summary

Appellant filed an administrative appeal of an order of the Department of Commerce on Dec. 21, 2009.  The appellant failed to file a copy of the original notice of appeal with the court, as required by the version of R. C. 119.12 applicable at the time of filing.  Due to this defect, the common pleas court dismissed the appeal on March 5, 2010. 

The legislature modified the language of R. C. 119.12, effective September 13, 2010, to eliminate the requirement that was not met by the appellant.  The amended statute provides that the amendments “shall be applied retrospectively to all appeals pursuant to this paragraph filed before the effective date of those amendments, but not earlier than May 7, 2009.” 

In February 25, 2011, five months after the effective date of the statute, the appellant filed a motion for relief from judgment based upon Ohio Civil Rule 60(B)(5).  Rule 60(B) provides that a motion for relief from judgment shall be filed “within a reasonable time.”  The common pleas court noted that the appellant had waited more than five months after the effective date of the statute, which was “easy to comprehend.”  The court also noted that the appellant had failed to establish a meritorious claim. 

The Department of Commerce argued that Rule 60(B) was not applicable because the civil rules do not apply to administrative appeals filed pursuant to R. C. 119.12.  The common pleas court followed precedent from appellate courts in the Tenth and Eighth districts, holding that Rule 60(B) is not applicable in administrative appeals.  The appellant’s motion for relief from judgment was denied.